Weygandt v. Ward

[Cite as Weygandt v. Ward, 2013-Ohio-1937.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
EARLY WEYGANDT, et al. C.A. No. 12CA0004
Appellees
v. APPEAL FROM JUDGMENT
ENTERED IN THE
VIRGIL F. WARD, et al. COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Defendants CASE No. 09-CV-0088
and
ROGER E. BAKER, et al.
Appellants
DECISION AND JOURNAL ENTRY
Dated: May 13, 2013
CARR, Judge.
{¶1} Appellants, Roger Baker, Diane Baker, and Linda Flickinger, appeal the judgment
of the Wayne County Court of Common Pleas. This Court affirms in part and reverses in part.
I.
{¶2} Fred Ward died in 1988, leaving his wife a life estate in his property. His will
provided that, upon his wife’s death, his real property would pass to his son Virgil, who also
received a life estate. The will provided that Virgil could “sell and dispose of any or all of said
real property for such prices and upon such terms as he in his own discretion may deem
advisable * * *.” If Virgil sold any of the land, however, he had to divide the proceeds into six
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parts. Virgil was allowed to keep two of the parts but he had to give the others to his four sisters
or their descendants.
{¶3} One of the properties that Virgil received after Mr. Ward’s wife died was a 240-
acre farm that he and his father had farmed together. Virgil continued farming the land for
several years until it became too difficult for him. He began renting the land to his niece and her
husband, Diane and Roger Baker, who lived nearby.
{¶4} Desiring to keep the 240-acres together as a family farm, Virgil later decided that
he wanted the Bakers to have the land. After consulting with a lawyer, he learned that he could
not give the land to the Bakers, but could sell it to them. According to the Bakers, Virgil
proposed that he sell the land to them for $1000 an acre, contingent on it remaining a farm and
their letting him live on the land until his death. The Bakers agreed to those terms. They
executed a sales agreement and mortgage, under which the Bakers would pay $240,000 for the
property and Virgil would receive the first $50,000 in mortgage payments to reimburse him for
improvements he had made to the farm with the rest to be divided between him and his sisters as
provided in Fred Ward’s will.
{¶5} After learning about the sale, some of Virgil’s sisters and their descendants sued
Virgil, the Bakers, and anyone else who might have an interest in the land, seeking a declaration
that the sale was void. The trial court dismissed the action because it determined that Fred
Ward’s will gave Virgil power to sell the land under whatever terms he desired. This Court
reversed, however, because we determined that, under the Ohio Supreme Court’s holding in
Johnson v. Johnson, 51 Ohio St. 446 (1894), Virgil owed a fiduciary duty to his sisters and their
descendants “as their implied, quasi trustee.” Weygandt v. Ward, 9th Dist. No. 09CA0050,
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2010-Ohio-2015, ¶ 12. We remanded the case to the trial court for it to determine whether Virgil
acted within his authority when he conveyed the property to the Bakers. Id. at ¶ 13, 15.
{¶6} At trial, Virgil’s sisters presented evidence that, at the time Virgil sold the
property for $240,000, its fair market value was $1,170,000. They argued that, even though
Virgil had discretion to sell the land at “such prices and upon such terms as he * * * may deem
advisable,” he had breached his duty of good faith to them. The trial court agreed, concluding
that Virgil “did not have the authority to convey the real property for insufficient consideration,
reserve a life estate for himself, grant an agricultural easement on the property, and take a note
and mortgage on the property whereby he received the first $50,000 in payments before any
monies were to be paid to Plaintiffs and others.” It, therefore, declared all of the documents that
were involved in the conveyance null and void. The Bakers have appealed, assigning seven
errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY CONCLUDING THAT VIRGIL WARD DID
NOT HAVE THE AUTHORITY UNDER HIS POWER OF SALE TO SELL
THE WARD FARM FOR SUCH PRICE AND UPON SUCH TERMS AS HE IN
HIS OWN DISCRETION DEEMED ADVISIBLE.
{¶7} The Bakers argue that, under Fred Ward’s will, “the only limitation” on Virgil’s
power to sell the 240 acres “was that the price and terms of sale must be ones which ‘he in his
own discretion may deem advisable.’” They have argued that, since Virgil was the one who set
the terms of the transaction, including the price, the sale was “upon such terms as [Virgil] in his
own discretion may deem advisable,” under the will. According to the Bakers, “[t]he trial court
had no right to question Virgil’s discretion as to the price or the terms; its only inquiry should
have been to determine whether the price and terms were, in fact, the product of [his] discretion.”
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{¶8} “The law of the case doctrine ‘provides that the decision of a reviewing court in a
case remains the law of that case on the legal questions involved for all subsequent proceedings
in the case at both the trial and reviewing levels.’” Neiswinter v. Nationwide Mut. Fire Ins. Co.,
9th Dist. No. 23648, 2008–Ohio–37, ¶ 10, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).
Ultimately, “the doctrine of law of the case precludes a litigant from attempting to rely on
arguments at a retrial which were fully pursued, or available to be pursued, in a first appeal.
New arguments are subject to issue preclusion, and are barred.” Hubbard ex rel. Creed v.
Sauline, 74 Ohio St.3d 402, 404–405 (1996).
{¶9} In this Court’s prior decision, we reasoned that, because Virgil’s sisters were
entitled to part of the proceeds of the sale of any land that he had received, Virgil “owed them a
duty as their implied, quasi trustee.” Weygandt v. Ward, 9th Dist. No. 09CA0050, 2010-Ohio-
2015, ¶ 12. Because Virgil was an implied trustee, we concluded, as a matter of law, that he did
not have “absolute power” over the terms of the sale as the language of the will might suggest.
Id. at ¶ 13. The Bakers’ present argument ignores the fact that whatever discretion the will may
have given Virgil to sell the property, it was limited by the duties he owed as an implied trustee.
In arguing that the only limitation on Virgil’s authority was that the price and terms must be
“which he in his own discretion may deem advisable,” the Bakers are, essentially, asking this
Court to reconsider whether Virgil’s authority under the will was limited by his duty as trustee.
This Court, however, has already determined that Fred Ward’s will did not give Virgil unbridled
power to sell the 240 acres at whatever price and under whatever terms he desired. Rather,
Virgil’s authority was limited by the duties he owed to the other beneficiaries as an implied
trustee. Although the previous appeal was from a motion to dismiss, it was necessary in deciding
that appeal for this Court to determine whether Virgil owed a duty to the other beneficiaries of
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the will. Under the doctrine of law of the case, the Bakers may not re-litigate whether a duty
existed or the limitation that it placed on Virgil’s discretion to sell the 240 acres. The Bakers’
assertion that “[t]he trial court had no right to question Virgil’s discretion as to the price and
terms” is incorrect. Pursuant to our remand instructions, it was the court’s responsibility to
consider whether Virgil acted within his authority as trustee when he sold the property. The
Bakers’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY ANALYZING THE SUFFICIENCY OF THE
CONSIDERATION APPELLANTS PAID FOR THE WARD FARM TO
DETERMINE WHETHER THE TRANSACTION WAS A SALE OR A GIFT.
{¶10} The Bakers acknowledge that, although Fred Ward’s will gave Virgil the power to
sell the 240 acres, it did not give him the right to gift them. They contend, however, that,
because the conveyance was for money, it was a sale, not a gift. They also contend that there is
nothing in Fred Ward’s will that set parameters on the amount of consideration that Virgil had to
receive in a sale. Accordingly, they argue that the trial court should not have examined the
sufficiency of the consideration he received.
{¶11} This Court based its prior decision on the Ohio Supreme Court’s holding in
Johnson v. Johnson, 51 Ohio St. 446 (1894). We explained that Johnson “held that a person who
receives a life estate in real property with a power to sell is ‘by implication, a quasi trustee for
those in remainder.’” Weygandt, 2010-Ohio-2015 at ¶ 12, quoting Johnson, 51 Ohio St. 446, at
paragraph two of the syllabus. The Ohio Supreme Court took its quasi-trustee theory from a
treatise by Jairus Wade Perry. Johnson, 51 Ohio St. at 460. According to Perry, “[t]rustees * * *
in the execution of their powers must use the utmost good faith toward all parties in interest.
This proposition cannot be too strongly stated and enforced. They must act impartially for every
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person who has any rights in the estate * * *. They must use every effort to sell the estate under
every possible advantage of time, place, and publicity. They must exercise their discretion, so
far as they have any, in an intelligent and reasonable manner.” Jairus Ware Perry, A Treatise on
the Law of Trusts and Trustees, Section 602o, p. 999 (6th ed. 1911). Perry also explained that a
“sale will not be set aside for mere inadequacy of price, if due diligence was used by the donee
of the power to sell under every possible advantage. But there may be cases where the price is so
grossly inadequate that the mere statement of it demonstrates that there must have been some
mismanagement or collusion, as if land worth $500 should be sold for $50.” Id. at Section 602z,
p. 1011.
{¶12} In our prior decision, we recognized that Virgil would be in breach of his
fiduciary duty to his sisters if his sale of the farm was “made with inadequate consideration to
constitute a good faith sale under the provisions of the will.” Weygandt, 2010-Ohio-2015 at ¶
15. While the Bakers argue that our statement was dicta, it accurately surmised what the Ohio
Supreme Court explained in Johnson and what Perry explained in his treatise. See Johnson, 51
Ohio St. at 460-461 (“[T]he duty rested upon [the life-estate tenant], in the nature of a trust, to
have due regard for the rights of those in remainder, as to the part of the estate not consumed by
her for her support; that while she could use and enjoy the estate to its fullest extent for her
support, and consume the whole of it, if necessary, she could not go beyond what would be
regarded as good faith towards the remainder-men * * *. [The decedent] gave her the right to
consume, but [not] to recklessly squander or give away, the estate.”). We conclude that, because
Virgil owed a fiduciary duty to his sisters, it was appropriate for the trial court, as part of its
determination of whether Virgil breached his duty, to analyze whether he received adequate
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consideration when he sold the 240-acre farm. The Bakers’ second assignment of error is
overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY FAILING TO INTERPRET THE WILL OF
FRED WARD IN ACCORDANCE WITH THE TESTATOR’S INTENT.
{¶13} The Bakers argue that it was incorrect for the trial court to examine whether the
sale was for sufficient consideration because the examination rendered the will’s “in his own
discretion” language meaningless. They have also argued that the there was no evidence that
Fred Ward intended to limit Virgil’s discretion. According to the Bakers, Virgil was “[t]he sole
arbiter of sufficiency.” They have further argued that the evidence they presented suggested that
Fred Ward did not intend to limit Virgil’s authority to sell the farm.
{¶14} As we explained in our prior decision, the will’s broad language regarding
Virgil’s discretion to sell the farm was limited by the fact that it also made Virgil a quasi-trustee
to anyone who had a remainder in Fred Ward’s real property. Weygandt, 2010-Ohio-2015, ¶ 12-
13. The doctrine of law of the case prevents this Court from reconsidering that issue in this
appeal. Nolan v. Nolan, 11 Ohio St.3d 1, 4 (1984). In accordance with our prior decision, we
conclude that whether Virgil received sufficient consideration for the sale of the land was an
appropriate factor for the trial court to consider when it evaluated whether he “acted within his
authority under the will” or breached his fiduciary duty to his sisters. Weygandt at ¶ 13. The
Bakers’ third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED BY CONCLUDING THAT VIRGIL WARD’S
BREACH OF HIS FIDUCIARY DUTY TO PLAINTIFFS INVALIDATED HIS
SALE OF THE WARD FARM TO APPELLANTS INSTEAD OF MERELY
SUPPORTING A CLAIM FOR DAMAGES.
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{¶15} The Bakers have argued that Virgil did not breach his fiduciary duty to his sisters
and their descendants. They have also argued that, even if Virgil violated his duty, the
appropriate remedy was to hold Virgil liable for the difference in value. According to the
Bakers, the court did not have the power to divest them of the 240 acres when they did nothing
wrong.
{¶16} With respect to whether Virgil breached his fiduciary duty, the Ohio Supreme
Court has recognized that, “[s]o long as a trustee executes [a] trust in good faith and within the
limits of a sound discretion, a court of equity will not interfere with that discretion or undertake
to substitute its discretion therefor.” Stevens v. Natl. City Bank, 45 Ohio St.3d 276, 279 (1989).
“Whether a defendant properly discharged his duty of care is normally a question for the [trier of
fact].” Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98 (1989); see Rudy v.
Bodenmiller, 2d Dist. No. 89 CA 54, 1990 WL 205109, *11 (Dec. 11, 1990) (characterizing
whether defendant breached his fiduciary duties as a question of fact).
{¶17} Virgil’s sisters presented evidence that the fair market value of the 240 acres at
the time of the sale was $1,170,000. The trial court accepted that value as credible. Virgil’s
sisters also presented evidence that, although the sale price was $240,000, Virgil intended to
keep the first $50,000 of the Bakers’ mortgage payments for himself in order to reimburse
himself for improvements that he allegedly made to the land. Accordingly, only $190,000 would
eventually pass under Fred Ward’s will. That amount is only 16% of the fair market value of the
land, even before discounting the payments on the Baker’s 15-year mortgage to their present
value. We note that, although the sale was contingent on the Bakers’ agreeing to an agricultural
easement on the property and allowing Virgil to continue living at a house on the acreage, the
Bakers did not present any evidence regarding the effect of those conditions on the marketability
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of the land. Upon review of the record, we conclude that the trial court’s determination that
Virgil breached his fiduciary duty to his sisters when he sold the 240 acres at a price that was far
below its fair market value was supported by sufficient evidence. We also conclude that the trial
court’s decision was not against the manifest weight of the evidence.
{¶18} Regarding the remedy that the trial court ordered, the Bakers note that, under R.C.
5810.12(A), “[a] person other than a beneficiary who in good faith assists a trustee, or who in
good faith and for value deals with a trustee, without knowledge that the trustee is exceeding or
improperly exercising the trustee’s powers is protected from liability as if the trustee properly
exercised the power.” The section “essentially provides protection to a bona fide purchaser for
value in connection with trust related transactions.” Peoples Bank Natl. Assn. v. Tome, 4th Dist.
No. 10CA38, 2011-Ohio-5412, ¶ 25 fn. 4. The Bakers have argued that, in light of R.C.
5810.12, the trial court could not set aside the sale unless it found that they either failed to act in
good faith or knew that Virgil lacked the power to sell the farm the way that he did. According
to the Bakers, the court did not make either of those finding so its decision to set aside the sale
was error.
{¶19} The Revised Code provides that “[a] violation by a trustee of a duty the trustee
owes to a beneficiary is a breach of trust.” R.C. 5810.01(A). “To remedy a breach of trust * * *
the court may * * * [s]ubject to section 5810.12 of the Revised Code, void an act of the trustee *
* *.” R.C. 5810.01(B)(9). As noted previously, if a beneficiary acted in good faith “without
knowledge that the trustee is exceeding or improperly exercising his powers,” the beneficiary is
“protected from liability as if the trustee properly exercised the power.” R.C. 5810.12(A).
{¶20} The Bakers correctly note that the trial court did not make specific findings with
respect to whether they acted in good faith or whether they knew the limits of Virgil’s power as
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trustee. Whether it was error for the court to void the transaction under R.C. 5810.01(B)(9)
depends, in part, on whether it was the Bakers’ burden to demonstrate that R.C. 5810.12(A)
applies because they acted in good faith or whether it was Virgil’s sisters’ burden to demonstrate
that Section 5810.12(A) does not apply. The trial court did not analyze that issue in its decision.
{¶21} Upon review of the trial court’s decision, we conclude that it is incomplete. After
determining that Virgil had breached his fiduciary duties, the court immediately went on to
declare all of the documents involved in the conveyance null and void without analyzing whether
R.C. 5810.12(A) applies. Consequently, the appropriate course of action is to remand this matter
to the trial court so that it can resolve that issue, including the burden of proof issue, in the first
instance. FirstMerit Bank, N.A. v. Inks, 9th Dist. Nos. 25980, 26182, 2012-Ohio-5155, ¶ 20.
The Baker’s fourth assignment of error is overruled in part and sustained in part.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED BY ADMITTING PAROL EVIDENCE ABOUT
THE FARM SALE AND NOT LIMITING EVIDENCE TO THE
INSTRUMENTS OF SALE.
{¶22} According to the Bakers, because the question before the trial court was whether
the conveyance of the 240 acres was a sale or a gift, the only evidence that the court should have
admitted was the documents executed by the parties. They argue that it was improper for the
trial court to allow Virgil’s sisters to present evidence about the fair market value of the farm,
which had no bearing on whether the transaction was a sale or gift.
{¶23} In this Court’s prior decision, we determined that it was improper for the trial
court to dismiss the action because the documents presented by Virgil’s sisters “raise numerous
questions about whether the sale was in fact a sale or was instead a gift or a transaction for
insufficient consideration.” Weygandt v. Ward, 9th Dist. No. 09CA0050, 2010-Ohio-2015, ¶ 15
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(emphasis added). The evidence that Virgil’s sisters presented regarding the fair market value of
the property was relevant and material concerning whether the transaction was for insufficient
consideration. We, therefore, conclude that the trial court correctly admitted the evidence. The
Bakers’ fifth assignment of error is overruled.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED BY ADMITTING EXPERT TESTIMONY AS
TO THE FAIR MARKET VALUE OF A FEE SIMPLE INTEREST IN THE
WARD FARM.
{¶24} The Bakers argue that the trial court should have excluded an appraiser’s
testimony about the fair market value of the farm because he did not consider all of the relevant
circumstances. According to them, the appraiser only considered the value of a fee simple
interest in the acreage and did not determine “a truly comparable value for the Ward Farm” in
light of the restrictions Virgil imposed on the sale. The Bakers argue that, because Virgil never
intended to sell the farm on the open market, the appraiser’s testimony was irrelevant or, at the
very least, more prejudicial than probative.
{¶25} Under Evid.R. 401, relevant evidence is “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” While the Bakers argue that the trial
court should have only considered the value of the farm with the restrictions Virgil imposed on
them, one of the issues that the court had to determine was whether Virgil’s insistence on those
restrictions was, in itself, a breach of his duty to his sisters. The sisters’ evidence about the fair
market value of the farm helped the court evaluate whether the restrictions unreasonably
diminished the value of the farm. The appraiser’s testimony also helped the court evaluate
whether the overall terms of the sale constituted a breach of Virgil’s fiduciary duty. The trial
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court, therefore, correctly allowed the testimony. The Bakers’ sixth assignment of error is
overruled.
ASSIGNMENT OF ERROR VII
THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING A
PROTECTIVE ORDER WHICH PRECLUDED DEFENDANTS FROM
TAKING DEPOSITIONS OF TWO OUT-OF-STATE PLAINTIFFS.
{¶26} Before trial, the Bakers attempted to take the deposition of Virgil’s sister Florence
Cardillo and his nephew Terry Weygandt, who are plaintiffs in the action, in Ohio. Ms. Cardillo,
who lives in California, and Mr. Weygandt, who lives in Oregon, moved for a protective order
after the Bakers moved to compel them to appear for deposition in Ohio. In her affidavit, Ms.
Cardillo averred that she is 89 years old and in poor health. She averred that she does not have
any knowledge about the documents that conveyed the farm to the Bakers or know of any
documents that could assist anyone in determining the value of the farm. She further averred
that it would be a great hardship on her health and expenses to have to travel to Ohio for a
deposition. Mr. Weygandt averred that he did not have any knowledge concerning the transfer
of the farm, the value of the farm, or that he knew anyone except the other plaintiffs who might
have such information. He also averred that it would be a financial hardship to have to travel to
Ohio to testify at a deposition and that he did not plan on testifying at trial.
{¶27} The Bakers opposed the motion for protective order, noting that it was Ms.
Cardillo and Mr. Weygandt who had chosen to sue them in Ohio. The Bakers also argued that
Ms. Cardillo and Mr. Weygandt had mischaracterized the issues in the case, that Ms. Cardillo
and Mr. Weygandt should not be the arbiters of whether they have any discoverable knowledge,
and that the court should not protect them from being deposed just because they claim not to
have any knowledge. The Bakers further argued that neither Ms. Cardillo nor Mr. Weygandt had
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denied talking with Virgil about the sale of the farm. The trial court, however, granted the
motion.
{¶28} In their brief, the Bakers repeat their arguments that Ms. Cardillo and Mr.
Weygandt have mischaracterized the issues in the case and that their affidavits do not deny
knowledge about all the relevant issues. According to the Bakers, Ms. Cardillo may have had a
conversation with Fred Ward in which Fred Ward told her that he intended for Virgil to be able
to do whatever he wished with the farm and be able to sell it for any price whatsoever, regardless
of its value. They argue that, because they were not allowed to depose Ms. Cardillo or Mr.
Weygandt, they can only speculate as to what information they might have discovered.
{¶29} Civ.R. 26(C) provides that, “[u]pon motion by any party or by the person from
whom discovery is sought, and for good cause shown, the court in which the action is pending
may make any order that justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including [an order] * * * that the
discovery not be had[.]” “Whether a protective order is necessary [is] a determination within the
sound discretion of the trial court.” Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-
Ohio-2496, ¶ 23. “Absent an abuse of discretion, an appellate court must affirm a trial court’s
disposition of discovery issues.” Montrose Ford, Inc. v. Starn, 147 Ohio App.3d 256, 259 (9th
Dist.2002), quoting Alpha Benefits Agency, Inc. v. King Ins. Agency, Inc., 134 Ohio App.3d 673,
680 (8th Dist.1999).
{¶30} It is clear from the language of Fred Ward’s will that Virgil had as much
discretion as possible with respect to selling the 240 acres so long as the terms of the sale were
consistent with his duty to his sisters and their descendants. The question for the trial court was
whether Virgil compromised his duty to his sisters when he set the terms of the sale. It is not
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apparent that Ms. Cardillo or Mr. Weygandt would have had any discoverable information
regarding whether Virgil fulfilled his duty to his sisters when he sold the farm to the Bakers.
Moreover, although Ms. Cardillo and Mr. Weygandt requested a protection “from being noticed
for a deposition,” that did not prevent the Bakers from attempting to obtain the information they
sought through a discovery method that would not be as much of a burden to Ms. Cardillo and
Mr. Weygandt such as a deposition upon written questions or written interrogatories. See Civ.R.
26(A) (describing methods through which parties may obtain discovery).
{¶31} Upon review of the record, we conclude that the trial court did not abuse its
discretion when it issued an order protecting Ms. Cardillo and Mr. Weygandt from having to
travel to Ohio for an oral deposition. The Bakers’ seventh assignment of error is overruled.
III.
{¶32} The trial court should have analyzed whether R.C. 5810.12(A) applies before
declaring the sale of the farm null and void. The judgment of the Wayne County Court of
Common Pleas is affirmed in part and reversed in part, and this matter is remanded for that court
to resolve that issue in the first instance.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to Appellants and Appellees.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
STEVEN J. SHROCK, Attorney at Law, for Appellants.
CHARLES A. KENNEDY, Attorney at Law, for Appellees.